JOSEPH L. DUBOSE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Joseph Dubose challenges the trial court’s denial of his motion to correct illegal sentence. Dubose argued that his case fell within the window during which portions of the habitual offender statute were determined to be unconstitutional in Johnson v. State, 616 So. 2d 1 (Fla.1993). The trial judge denied the motion on the basis that Dubose did not qualify for habitualization on the basis of a conviction for aggravated battery — the defect in Johnson’s violent habitual offender sentence which necessitated its vacation. In support of the order of denial, the trial court appended the qualifying criminal judgments, which include convictions from the state of Maryland. The use of out-of-state convictions is the second defect in habitual offender sentences caused by the unconstitutional amendment to the statute. See Baxter v. State, 616 So. 2d 47 (Fla.1993). Nevertheless, also accompanying the order of denial are Florida criminal convictions utilized to justify the habitual offender sentence, which legitimize the sentence without resort to the Maryland convictions.
Accordingly, the order of the trial court is affirmed
CAMPBELL, A.C.J., and BLUE and CASANUEVA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Barber, 744 So. 2d 1115 (Fla. 5th DCA 1999)…n order was never “rendered” on the matter, and the trial judge in the instant case erred in refusing to exercise discretion in the matter and in believing that no discretion was exercisable because of an earlier judge’s ruling. See State v. J.M.C., 714 So. 2d 1173 (Fla. 2d DCA 1998); see also State v. Smith, 118 So. 2d 792 (Fla. 1st DCA 1960). PETITION GRANTED; WRIT ISSUED; REMANDED. DAUKSCH, GOSHORN and PETERSON, JJ., concur.…
Authorities Cited
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Baxter v. State, 616 So. 2d 47 (Fla. 1993)